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<br />and within the time herein required, City may, at its sole option exercise any of
<br />the following remedies, which are alternatives to other remedies City may have
<br />and are not the exclusive remedy for Consultant's breach:
<br />^ Obtain such insurance and deduct and retain the amount of the premiums for
<br />such insurance from any sums due under the Agreement;
<br />^ Order Consultant to stop work under this Agreement or withhold any payment
<br />that becomes due to Consultant hereunder, or both stop work and withhold
<br />any payment, until Consultant demonstrates compliance with the requirements
<br />hereof; and/or
<br />^ Terminate this Agreement.
<br />Section ~. INDEII~INIFICATION AND CONSULTANT'S R~S>hONSi»ILITIES.
<br />Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City
<br />and its officials, officers, employees, agents, and volunteers from and against any and all losses,
<br />liability, claims, suits; actions, damages, and causes of action arising out of any personal injury;
<br />bodily injury, loss of life, or damage to property, or any violation of any federal, state, or
<br />municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct
<br />or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts
<br />for which they could be held strictly liable, or by the quality or character of their work. The
<br />foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to
<br />property, or violation of law arises wholly from the negligence or willful misconduct of the City
<br />or its officers; employees, agents, or volunteers and (2) the actions of Consultant or its
<br />employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage
<br />to property, or violation of law. It is understood that the duty of Consultant to indemnify and
<br />hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil
<br />Code. Acceptance by City of insurance certificates and endorsements required under this
<br />Agreement does not relieve Consultant from liability under this indemnification and hold
<br />harmless clause. This indemnification and hold harmless clause shall apply to any damages or
<br />claims for damages whether or not such insurance policies shall have been determined to apply.
<br />By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this
<br />Section and that it is a material element of consideration.
<br />In the event that Consultant or any employee, agent, or subcontractor of Consultant providing
<br />services under this Agreement is determined by a court of competent jurisdiction or the
<br />California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as
<br />an employee of City, Consultant shall indemnify, defend, and hold harmless City for the
<br />payment of any employee and/or employer contributions far PERS benefits on behalf of
<br />Consultant or its employees, agents, or subcontractors, as well as fer the payment of any
<br />penalties and interest on such contributions, which would otherwise be the responsibility of City.
<br />Consulting Services Agreement between
<br />City of San Leandro and C. Kell-Smith & Associates, Inc. Page 8 of 8
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